Copyright Basics (needs attribution)

• When is copyright protected?
  • From the time the work is fixed in a tangible medium. Copyright protection can last for a very long time – over a hundred years from the time it’s created.
• Can we use anything we find?
  • We can only use material that fits one of these four conditions:
    • We created it ourselves (but if you work for someone else, they may own the copyright! Check with your employer to make sure. For example, Texas State University permits employees to openly license coursework and scholarship they create for the university, even if the university owns it.)
    • The creator marked it with an open license.
    • It is uncopyrightable (short phrases or facts, for example) or in the public domain (the copyright has ended, for example).
    • It is a fair use (more on this in the next section).
• What’s in the public domain?
  • Public domain does not mean everything that is publicly available. Just because something has been used many times on the Internet doesn’t mean you won’t be infringing by using it yourself. Just because something doesn’t have a copyright notice on it doesn’t mean it is not protected by copyright.
  • Public domain differs by jurisdiction  – anything published in the US before 1927 and anything created by the United States federal government will be in the public domain, but for anything else, you will need to check whether it is still in copyright.

Introduction to Fair Use

By Samuel Morse, from Fair Use Crash Course, a Canvas module created for Texas State University Libraries (2022).

Whether or not you’re familiar with the term, you’re likely already making use of Fair Use in some way. It’s what allows us to quote poetry for our analyses, use source codes in coding project, and make the memes that populate our timelines. Learning more specific knowledge can allow students and researchers to move forward with more confidence as they use others’ copyrighted works.

What is Fair Use?

Fair Use creates certain instances where people can reuse copyrighted material in their work without first gaining permission from the copyright holder.

Defined in Section 107 of the Copyright Act, whether or not the use of a copyrighted work is considered “Fair” is measured through these four factors:

1. 1. 1. 1. The purpose and character of the use
         2.  The nature of the copyrighted work
         3.  The amount and substantiality of the portion used in relation to the copyrighted work as a whole
         4.  The effect of the use upon the potential market for or value of the copyrighted work

In this chapter, we’ll go through each of these four factors and wrap things up with some specific information and a review.

Factor 1-Purpose and Character

The First factor in involved in evaluating use reads as follows,

“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

This factor is meant to investigate why you want to use a copyright worked, and what you want to use it to do. As stated in the statute above, using copyrighted works for nonprofit, educational purposes will make courts more likely to rule in favor of Fair Use. That’s an important part of this statute, especially for students and educators, but there’s another very important facet not explicitly stated, which is the concept of transformative use.

Transformative Use

According to the Supreme Court, using a copyrighted work is considered transformative if the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

When you’re making a work with the purpose of providing criticism, commentary, or parody, you’re creating a work with a different meaning or message than the original you’re using. Thus, your work is more likely to be considered transformative.

Here’s an example. In Campbell v. Acuff-Rose Music, a sound called “Pretty Woman” by music group 2 Live Crew was found to be transformative. 2 Live Crew was found infringing on a song called “Oh, Pretty Woman” as they had borrowed a portion of it. However, what made the Supreme Court rule the work as transformative, and therefore Fair, was that “Pretty Woman” used comical lyrics to satirize the original. Here’s “Pretty Woman” and “Oh, Pretty Woman” so you can evaluate the transformation yourself.

https://www.youtube.com/watch?v=65GQ70Rf_8Y Links to an external site. (Pretty Woman)

https://www.youtube.com/watch?v=3KFvoDDs0XM Links to an external site. (Oh, Pretty Woman)

https://www.youtube.com/watch?v=FqQM6N3CMlQ&pp=ygUYMiBsaXZlIGNyZXcgcHJldHR5IHdvbWFu Links to an external site. (News program of 2 Live Crew discussing)

As a final note, know that the character of a use of work does not have to be transformative in order to be considered Fair Use, but courts are more likely to rule in favor of uses that are.

Factor 2-Nature

The second factor involved in evaluating whether a use is fair is,

“the nature of the copyrighted work.”

There are two main facets of a work’s nature that courts consider for this factor. These are whether the work you’re using is published or unpublished, and whether it is a work of fiction or nonfiction.

Published, Factual Work

Generally, using published works that are nonfiction and based in fact is more likely to be considered fair. Copyright is primarily oriented towards protection ownership over creative works and doesn’t really cover any factual information. Thus, Fair Use is more heavily considered when someone quotes a guidebook than when they use an image.

Additionally, unpublished works can be tricky to use in a way that’s considered fair. An example of this comes from the case Soc’y of the Holy Transfiguration Monastery, Inc. v. Gregory. Archbishop Gregory uploaded unpublished translations of a manuscript to his website, and the Society of Holy Transfiguration Monastery claimed copyright infringement. The First Circuit Court of Appeals ruled in favor of the Monastery, claiming that Gregory had taken control of when and how the Monastery would release the translations to the public.

Don’t be like Gregory. If you want to use an unpublished work, gain permission from the author first. If you want your use to be covered under Fair Use, published, factual works are safer to use than their unpublished, creative counterparts.

Factor 3-Amount

The third factor involved in evaluating whether a use is fair is,

“The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

Generally, using a smaller amount of copyrighted work makes it more likely for use to be considered fair. This can be tricky, however, because there’s no hard and fast rules on how much of a copyrighted work can be used without infringing on an author. Additionally, Fair Use may not cover using what is considered to be the “heart” of a text, or the most important or widely known part of it.

Factor 4-Effect

The fourth factor involved in evaluating whether whether a use is fair is,

“the effect of the use upon the potential market for or value of the copyrighted work.”

Under the Fair Use doctrine, using a copyrighted work without permission is not allowed to impact the income of the copyright holder. Even if your work is not directly competing with the original work, if it affects the copyright holder’s ability to profit from their work, they may have a case for copyright infringement.

This is one of the trickiest factors to navigate. Some general guidelines are to make as few copies of copyrighted works as possible, and to avoid making copyrighted work publicly accessible online for anyone to engage with when you’re doing web based projects. Ultimately, if you’re worried about your work affecting the copyright holder’s income, you can always reach out and seek permission from them to use their work.

One final note: parody is still protected under Fair Use even if the use would impact the copyright holder’s income. Parody that would so negatively affect a source material is considered to equal to the power of a bad review, and therefore is generally not considered a copyright infringement by courts.

Tips for Students

Copyright and Citations

Through their classes and coursework, students learn how to cite their sources and make bibliographies. This is a great place to start when applying Fair Use factors to your work!  Properly citing your sources using a citation style like MLA, APA, or Chicago provides attribution to others’ work.

However, citing a source in these ways doesn’t always mean you’re in the clear in terms of copyright–especially if you’re using copyrighted works. If you really want to use copyrighted works, you’d need to obtain permission from the copyright owner in the form of a license to be certain that the use was safe from infringement. Fair Use is helpful to navigate that ambiguity and helps as a last resort when facing infringement claims, but it’s not foolproof.

If you’re unable to obtain a license and don’t want to rely on Fair Use, there are two excellent options available to you: public domain and creative commons content.

The Public Domain

Works that are in the public domain are freely available to everyone to use. Texas State Libraries provide access to online collections of public domain materials. One example is the Hathi Trust, which offers over 6 million public domain volumes–many of which include images that can be downloaded and freely used in your work.

Use Hathi Trust https://guides.library.txstate.edu/c.php?g=879911&p=6320932

Creative Commons Licenses

Works licensed under creative commons licenses are a bit trickier to use, but still a very good option for students to use in their work. There six different Creative commons licenses that each use different combinations of the following attributes:

BY – Credit must be given to the creator
SA – Adaptations must be shared under the same terms
NC – Only noncommercial uses of the work are permitted
ND – No derivatives or adaptations of the work are permitted

When using creative commons, make sure to follow the guidelines specified by that cc license. For information on the creative commons licenses, you can find their website here Links to an external site..